[1997] UGHC 17

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# IN THE MATTER - PARLIAMENTARY ELECTIONS ELECTION PETITION 22/96

HAJI MULUYA MUSTAPHAR PETITIONER

## - VERSUS -

ALUPAKUSADHI WAIIBI WAMULONGO 1ST RESPONDENT THE RETURNING OFFICER-LQANGA DIST. 2ND RESPONDENT THE CHAIRMAN INTERIM ELECT. COMM 3RD RESPONDENT

#### BEFORE THE HONOURABLE LADY JUSTICE C. K. BYAMUGISHA

### JUDGEMENT

The petition, the subject matter of these proceedings was filed by Hajji Muluya Mustaphar against the first respondent Alupakusadhi Waiibi Wamulongo, Returning Officer, Iganga District and the Chairman Interim Electoral the Commission as the second and third respondents respectively. The petitioner was six candidates who contested the Parliamentary Elections held on the one of the June ¹⁹⁹⁶ in Bunya East Constituency Iganga District in which the 27th day of was declared the winning candidate for those elections with ⁷⁷⁵⁵ first respondent ⁴⁰ *0% as* against the petitioner's ⁵³⁵⁶ votes or 27.7%. The petitioner is votes or that some electoral offenses as defined under the Provisions of the alleging

Parliament Elections (Interim Provisions) Statute No. 4/1996 had occurred.

¹ he following were the agreed issues:-

- <1) stand for elections. whether the first respondent has the necessary education qualifications to - (2) whether the second and third respondent conducted the election regularly; - (3) whether the first respondent com mitted any election offenses or malpractices, - (4) whether the first respondent was validly elected an M. P. for Bunya East Constituency, - (5) what reliefs if any are available to the petitioner.

The burden of proof in an election petition lies on the petitioner who has to satisfy court that the law relatin ^g to the conduct of elections was breached or that there were serious irregularities which affected the outcome of the elections. Section 91(1) of the Parliamentary Elections Interim Provisions Statute, Statute No. 4/96 provides that:

"The election of a candidate as a member of Parliament shall only be set aside on any of the following grounds if proved to the satisfaction of the court-

- non-compliance with the provisions of this statute relating **to** (a) elections, if the court is satisfied that there has been failure to conduct elections in accordance with the principles laid down in those provisions and that the non-compliance and that such failure affected the result of the election in a substantial manner. - other than the one elected won the election. that ^a person (b) - illegal practice or any other offence under this statute was (c) that an com mitted in ccmnection with the election by the candidate personally

or with his knowledge and consent or approval, or

(d) that the candidate was at the time of his or election not qualified or was disqualified for election as a member of Parliament"

According to the provisions of this section, before an election of a member of Parliament can be set aside on any of the grounds specified, the said ground or grounds have to be proved to the satisfaction of the Court. The expression "the satisfaction of the Court" is not statutorily defined. However it corresponds with section ⁷ of the Divorce Act which enacts that prior to granting the decree the correspond with section 5(2) of the English matrimonial Causes Act which enacts that a court must be satisfied that the case for the petitioner has been proved. In the case of Blyth v Bly>th (1966) I All ER 524 it was unanimously held by the House of Lords that the words "is satisfied" do not mean satisfied beyond any reasonable doubt and that so far as the grounds for divorce areconcerned a case like any other civil case may be proved by a preponderance of probability but the offence is grave so ought the proof to be clear. In the case of Mbowe v. Elinfoo referred to by counsel in their respective sub mis sions the High Court of Tanzania had occasion to interpret section ⁹⁹ of the National (Elections) Act ¹⁹⁶⁴ which is similar to section ⁹¹. In the judgment Assembly Georges C. J. had the following to say on the standard of proof. (1967)EA 240 which was degree of probability depends on the subject-matter and in proportion as the court must be satisfied so far as it reasonable can, as to the facts alleged. This

of the court" satisfying court. "And the standard of proof is one which involves proof "to the satisfaction In my view these words infact mean the same thing as

where reasonable 'Tfoubt exists then it is impossible to say that one is ^a

satisfied, where ^a reasonable doubt exists and therefore the standard of proof in this case must be such that one has no reasonable doubt that one or more of the grounds set out in sect 99(b)"

To summarise the law on the standard of proof, the allegations in an election petition are grave and some of them involving criminal activities where such ^a person would be liable for criminal prosecution, so the proof must be clear but the proof is not beyond any reasonable doubt as in criminal cases. The standard of proof is on a propendrace in criminal cases of probability. The provisions of subsections ² and ³ of section 91 seems to support this.

Subsection ² says:-

"Nothing in this section confers on the court when hearing an election petition, a power to convict a person for a criminal offence. And subsection ³ says.

*0*

(3) where it appears to the court on hearing an election petition under this section that the facts before it discloses that a criminal offence may have been committed, it shall make a report on the matter to the Director of Public Prosecutions for appropriate action to be taken"

Turning to the issues herein, I shall commence with the first one i.e whether the first for elections. respondent Wamulongo has the necessary education qualifications to stand

The Article 80(i) of the constitution which provides thus out in minimum education qualifications required for a member of Parliament were set

is qualified to be ^a member of Parliament if that person "A person a) b)

*A*

Certificate itself allegedly awarded to respondent contains material contradictions and as such is invalid'' ''That the Diploma the first

On 12th August 1996, the first respondent filed an affidavit in rebuttal. In paragraph two of the same he statedi-

"That I attended the College of Proficient Accountants which is registered with the Ministry of Education and affiliated to Institute of Business Executives and Administrators London"

In paragraph ³ he said:

"That this was a two years course after which ¹ was

awarded a diploma in March 1996"

It will be noted here that the first respondent had no answer to the petitioners negative averments that he did not have the minimum education qualification of advanced level or its equivalent or that the institute which awarded him the diploma is not recognised by the Uganda National Examination Board.

Other pieces of evidence which are being relied upon are the affidavit of the he pursued and completed ^a diploma course in Forwarding and Clearing in March the time of his nomination as ^a Parliamentary candidate he had not ¹⁹⁹⁶ and that at the Diploma from his former College - hence no copy of the Diploma was received During cross-examination he confirmed that the nomination papers. at tached to at the time of his nomination and that since he got the diploma he did not adduced in this case was ^a diploma (exhibit D.l) issued in the other evidence ---- he did not "\*" \* . have. ~~ the1 .......— diploma -•—.v--. know whether he furnished the comntission with a copy. The first respondent sworn on the 21st May 1996 (exhibit P.3) in which he stated that

names of the first respondent; two letters dated 17th June ¹⁹⁹¹ addressed to the Principal College of Proficient Accountants and signed by membership secretarycorporation of Executives The Ad minis trator^s and another proprietor of College of Proficient Accounts by the Commissioner of Education (exhibit D2). \_and Administrators^ one dated 10th September 1991 addressed to the Faculty of Business

^I shall now deal with the submissions of counsel on rhe first issue. Counsel for the petitioner submitted that the first respondent does not possess the minimum educational qualifications of advanced

level or its equivalent to stand as a parliamentary candidate. He stated that the evidence given about the diploma (exhibit DI) shows that it is not recognised by Uganda National Examination Board. Referring to the affidavit of the first respondent sworn on 21/05/96 (exhibit P.3) he stated therein that he obtained the Diploma from the Institute of Proficiency Accountants Kampala. Counsel further stated that when the first respondent was cross-examined he stated that he did not know whether the institute gives any awards. In another affidavit sworn by the 12/08/96 he stated that he attended the College of Proficient Accountant. He claimed that there was ^a doubt as to which institute or college the first respondent attended. Turning to the diploma (exhibit D.l) Counsel genuine document. submitted that According counsel, it to ' Accountancy and the College of Proficient Accountants. What the diploma contains, did not mention anywhere in his affidavits that he obtained the first respondent a in support of his nomination. the affidavit sworn that it states that it was founded in ¹⁹⁸⁰ for certified directors. counsel submitted diploma awarded by the Institute of Business Executives and Administrators in Turning to the diploma itself acounsel argued, is the first respondent on a Diploma of Business Executives and Administrators and yet has no reference to the Institute of Proficiency it was ^a fabrication and not a

It states that it is registered and recognised by the Ministry of Education and Sports in Uganda. Counsel claimed that in 1980 there was only a Ministry of Education and not Sports. Counsel also stated that there is nothing to suggest that the above institute is based in London. The board of examination is not has no seal and therefore its authenticity is questionable. according to counsel is not shown on the diploma. He claimed that the document

Turning to exhibit D.2 counsel invited court to critically examine the contents, the English construction, the typing, the grammar, spelling mistakes, crossings etc. Counsel further submitted that the first respondent has failed to show that he has the necessary education qualification and the burden is on him. He relied on the case of Sheikh Ali Senyonga v. Sheikh Rajab Kakooza C. A. No. 9/90 where the Supreme Court held that the burden of proving the qualifications lies on the person who alleges he has them.

In reply to these submissions counsel for the first respondent stated that the petitioner has failed to prove the case against the respondent and the burden of proof is on him. He referred to the case of Mbow^(supra) and Election Petition No. 1/96 Qdetta Henry John v. Qaeda Onax; Election Petition Mo. 2/96 Atisoferi Michael Ogola v. Akika Othieno Em manuel; Election Petition No. 2/96 Ayena Odongo Wacha *&* Another; Election Petition No. DP MFP 1/96 Alisemera Babiiha Jane v Ben election petition the burden of proof lies on the petitioner since he/she that in an the election declared void. On issue No.l, counsel submitted is the one who wants the petitioner has not discharged the burden. Heclaimed that the respondent that that he has the necessary qualification and he stated that does not have to prove (supra) does not apply to the facts of this case because the case of Senyonga that it has to be proved to the satisfaction of the court that the section ⁹¹ states candidate was not qualified to stand. In the Senyonga case, counsel contended v The Returning Officer Bundibugyo District and another for the legal proposition

that the Supreme Court Supreme Council and it was stated that he who alleges has to prove. Referring to the case of Ayena Odongo (supra) in which the petitioner had submitted that the statute sets two standard of proof, counsel stated that this was rejected by the trial court. He referred to the evidence adduced and contended that it has not qualifications. He also dismissed the contents of the petitioner's affidavit as being hearsay and being in contravention 0.17 rule ³ of the Civil Procedure Rules. On the question of qualification itself counsel relied on the decision of Odeta in which the learned Principal Judge stated that it is sufficient for the respondent to assert that he obtained the diploma and the petitioner has to prove that he did <not.. It> was also held in that case th-at ^a party who wishes to challenge ^a winning candidate on the ground that the candidate was not qualified should show good reason why he opted for the procedure under section 91(l)(d) rather than the earlier chance under section ¹⁵ of the Statute. Referring to the evidence of Commissioner Nkurukenda counsel submitted that the witness stated that the qualifications of the first respondent were queried and he was later cleared by the Commissioner. He further submitted that the diploma which was tendered by the first respondent falls under the 4th schedule 1(H) because it is from an institute it could also fall under Examination Board. was interpreting the Constitution of the Uganda Muslim as it is ^a diploma recognised by Uganda National proved that the first respondent does not possess the necessary education recognised by the Ministry of Education and even UNEB. He also submitted that

alternative counsel submitted that it is not even necessary to have In the He stated that the requirement for qualifications provided under qualifications the Constitution infringes on articles 70(i)(c) and 38(1). He also article 80(1) of in Halsbury's Lavs of England 3rd Edition pg ³⁹⁵ for the referred to ^a passage that the court must reconcile the provisions of ^a statute. He also legal proposition relied on the Case of Patent Agents v. Pollock (1894) A. C. 307. He concluded his submissions by stating that the provisions as to qualifications are inferior to the necessity to participate in elections without any hindrance. Counsel for the second and third respondents also made submissions on the issue of educational qualifications. He stated that before nomination the Commission had to be satisfied that the person seeking nomination satisfies the requirements of article 80(l)(c) and section 38(l)(c) of Statute No. 4/96. In caseof qualifications, counsel claimed that the Electoral Commission received copies of academic papers which were in possession of the first respondent and this was ^ZO' level certificate and ^a diploma in accountancy. He alsoclaimed that the Com mis sioner consulted Uganda National Examination Board—which confirmed that the first respondents papers were in order and it issued him with nomination papers.

In reply, counsel for the petitioner pointed out that his learned friends mis directed the ^m selves as to the proof regarding education qualifications. He referred to section 102 of the Evidence Act which deals generally with the burden of proof. The section says: burden of

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person."

He with counsel for the first respondent that he who alleges must prove agreed He referred to section ¹⁰⁵ of but claimed that they are exceptions to this rule. the above Act which sayst-

when any fact is especially within the knowledge of any person the burden of proving that tact is upon him "In civil proceedings

He submitted that facts first respondent claims to have the qualifications. He referred to ^a passage in P'hipson on Evidence 10th Edition pg ⁵⁴ where the author says that the burden of proof lies on the person who alleges in the aftirmative. The petitioner is alleging in the negative and the first respondent in the affirmative. He stated that there is no leg al or factual presumption that he has the qualifications. On the clearance of the first respondent to stand by the commission, counsel stated that this was immaterial since the court was making its own inquiries and in although she stated that he was cleared this was not within her knowledge since it was one Mr. Owor who was in charge of academic qualifications. He also stated that t\*he report of the commission orFwhich it based its decision was not adduced in evidence. Counsel also submitted that the first respondent failed to establish three institutions namely the Institute of Proficiency Accountants which the College of Proficient Accountancy and the institute which is mentioned in exhibit D.2. as to qualifications are within the knowledge of the first respondent. He stated that the any case, commissioner Nkurukenda was non-committal a nexus between the he mentioned in exhibit (P.3)

He also referred Court to Sarkar on Evidence and various passages contained theiein as to the burden of proof. He concluded his submissions by stating that the petitioner has brought out all the evidence he has to discredit the evidence of the first respondent. has brought all the qualifications he has in his possession and the court can determine the issue on this. In the same way the latter

After outlining what I consider to be the salient features of the submissions who has the burden to prove what. The alleged in his petition and accompanying affidavits that the first petitioner On the other hand, the first law. respondent does not possess, the necessary education qualifications set out in the This was a negative averment in my view. ^I shall first sort out the issue of

respondent put himself for ward as ^a candidate, to stand as ^a member of Parliament and by virtue of that he affirms that he the court th believe that qualifications and these In learned author said was commenting on-similar provisions of the Indian Evidence Act. At pg 874 the he has the necessary education meets the legal requirements. He is the one who wants are facts which are peculiarly within his knowledge. support of this, ^I shall quote apassage from Sarkar on Evidence where the author

''This section applies the general rule in S.101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if of ^a particular fact, the onus of proving that fact is on him, unless the burden of proving it is cast by any law on any particular person." \* ^a person wishes the court to'Believe the existence

facts which are especially within the knowledge of any person, the author sayst-As regardsrthe rule on

the party who substantially asserts fact rests on the issue. S.106 is not intended to relieve affirmative of the the rule rule) is thus, that where the subject-matter named general above "This section, like the preceding one, states an exception rule laid down in S.101, that the burden of stated in Tayjor thus: The second exception (to the proving ^a to the general any person of that duty or burden. It says that when ^a fact to be proved (whether affirmative or negative) is peculiarly within a party, it is for him to prove it. It embodies the knowledge of

even though there be Of the parties theYarty must negative character and a presumption of law in his favour." affirmative or a prove it, whether it be of an .peculiarly within the knowledge of one of the allegations lies

a guide, I turn to the facts and circumstances of this himself as a candidate, he was duly nominated and eventually elected as ^a member of Parliament. It can be assumed ^t herefore that he has the minimu ^m educational qualifications laid down in the Statute. He knows which schools and institutions he has attended as a student and generally what he has been doing in his adult life. These are facts which are peculiarly or specially within his knowledge. He therefore has the burden to prove to the satisfaction of the court that he is the schools he attended with the certificates obtained and the evidential burden will the petitioner to dispute the qualifications by adducing evidence shift to which will c&st (supra.).,does not specifically state that the burden of proof lies on the section ⁹¹ he is the one who wishes the court to set aside the what, in the course of the trial. ^I am therefore not was not the respondent to go to Moscow and get the the academy information from petitioner although I agree that of the Evidence Act have to be invoked and applied to case. As stated earlier, the first responded offered Using the above as a reasonable doubt on qualified to be a member of Parliament. All he has to do is to adduce evidence of election so the provisions **2** determine who has to prove . the learned Principal Judge said in Ometa's case that it persuaded by wnai incumbent upon the petitioner and about the respondent's qualifications or lack of it. that he asserts their authenticity. It will be noticed that

^z level certificate or its equivalent? According to our current . minimum *of* advanceu ig Does the respondenr^ossess the necessary educational qualifications of a

educational system notice of, there are various stages in place. There is normally last seven years. There is the lasts four years leading to the award of ^ZO' level certificate, and advanced level stage lasting two years leading to the award of advanced level certificate. Anyone in possession of these two certificates ^a candidate for parliamentary elections. Those not in possession of advanced level certificate must have what has been termed the equivalent under the schedule. The first respondent in the matter now before court did not adduce any evidence direct or circumstantial to show that he went however submitted by counsel for the Electoral Commission, that it examined the qualifications of the first respondent and found that he had 'O' level certificate and a diploma in accountancy. This submission is irrelevant since it came from the bar and it was not part of theevidence adduced at the trial. It was also submitted first respondent that the Ministry of Education and Uganda by counsel for the consulted before the first respondent was National Examination Board were commission since the facts Moreover different from stated that be mentioned here that summon, the Secretary of Uganda National the statute **to** Sports and the respondent raised objections which ^I upheld. Yet, these Counsel for the first which was allegedly used by the third respondent the witnes had evidence ses the commissioner during the trial, counsel for the petitioner applied under cleared. That may well be true, but the court is not bound by the findings of the and evidence which were before the commission may used to reach its decisions by concesus. It should section 94(3) of Examination Board, the commissioner for schools in the Ministry of Education and the College of Proficient Accountants as witnesses. to any school except the College or Institute of Proficiency Accountants. It was qualifies to stand as the. primary stage which secondary stage which principal of about the first respondent's the facts which are now before court. ^have been Cora mission Nkurukenda whocame as ^a court witness had no particular information academic qualifications. She was non-committal and WhiCh the court will take judicial

If the information they gave to the com mis sion dearing the first information withheld from court? draw is that if they had been the first respondent. Another piece of evidence time of his nomination he did affidavit (exhibit P.3) in lieu. He also stated that at the timeof the trial he did not know whether he eventually took the Diploma to the Commission. Even if I accept that the first respondent has or had 'O'level certificate at the time of his nomination is the diploma (exhibit D.l) equivalent of advanced level? The fourth schedule to the statute sets out various standard of education equivalent to 'A' that the Diploma falls under 1(h) or 1(1). 1(h) saysz- respondent called, their testimony would have been adverse to which cs^sts doubt on the first not have the diploma and instead he swore an vas useful in It was contended by the first respondent why was the same The only reasonable inference the court can respondent's qualifications is that during cross-examination, he stated that at the level standard which should guide court. **e1e=,o"Ieo..is!ionfnc]5arfnjtheflrsire!wto^**

"Any person holding a post Junior secondary certificate,

Degree acquired from any recognised College, a Diploma or

Institution shall be taken to be holding University or

an 'A' level certificate/

is that he attended ^a two year course at the first respondent The case for the which is registered with the Ministry of Act. However there is no evidence that the are awards it gives Accountants Institute of Business Executives and Ad ministr a tor^s from the corporation the College was College of Proficient Education and affiliated to the contained in paragraph 2 of his affidavits dated 12/08/96 based in London. This 4-71 /05/96. He also relied and the one of 21/uj/ by the Ministry of Education as a private Institution registered of the Education the Ministry of Education. The letter dated on exhibit D.2. According to this exhibit 17th June addressed of Executives under the provisions recognised by ^t the'Jfrincipal of the college shows that the said letter came and Administrators of London. The Diploma

(exhibit D.1) was allegedly issued by the Institute of Business Executives and Administrators. In the body of the diploma it is stated that it is "registered and recognised by the Ministry of Education and Sports Uganda. There is no evidence that this institute is also recognised and registered by the Ministry of Education and Sports in Uganda. This document in my view can be safely described as telling lies about itself. But as counsel for the petitioner pointed out in his submissions there is no nexus between the three institutions. In any case, the question of registration and recognition would have been cleared by the officials of the said Ministry but as I pointed out earlier, the first respondent was not interested in their testimony. The diploma itself would be equivalent to $A'$ level standard if the holder has some other formal education but in this case, the first respondent adduced no evidence to prove or assert as to where he went to school. $1(J)$ states that:-

"any degree, certificate or diploma recognised by a professional body, the Uganda National Examinations Board, or any University in Uganda as equivalent to Advanced level standard"

Although, the first respondent stated in cross-examination that he is a member of an organisation called the Clearing and Forwarding Association, there was no evidence to show that this is a professional body or a discipline or that it recognises his diploma as being equivalent to advanced level standard.

In conclusion the evidence adduced by the petitioner has raised considerable doubt in the educational qualification of the first respondent. He disowned the examination transcript from the College he allegedly attended $% \left\vert \mathbf{r}\right\rangle$ because according to his counsel it contained material contradictions with the diploma (exhibit $D.1$ ). The court is satisfied on the evidence before it, that the first respondent was at the time of his election as a member of Parliament not qualified as he was not in possession of a minimum standard of education of

advanced level or its equivalent as set out in that the Constitution and the statute. ^I so find.

The second issue is whether the submissions on this issue. Counsellor the petitioner submitted that it was the responsibility of the third respondent to ensure that the elections was conducted in accordance with the provisions of the his It was counsel's submission that the names of the ten persons were merely inserted in the nomination paper and some were crossed out. There were no signatures and according to counsel, it contravened the provisions of section 40(l)(c) of the statute and therefore the first respondent Counsel for the second and third respondent submitted that the nomination paper fulfils the requirement. He conceded that some names were crossed out and others He advanced his own theory as to what could have inserted above or below. respondents in their affidavits denied the allegations happened but all the statute. He specifically singled out the nomination of the first respondent and nomination paper (exhibit P.4). second and third respondents conducted the election regularly. Both counsel made was not duly nominated and therefore he should not have been allowed to stand. contained in the respondent's affidavit.

which says:- The law governing the nomination of candidates is found in section 40(l)(c)

candidate shall be made on two registered voters tendering to the nomination day by any returning officer the following "Nomination of a

(a)

(b)

of ^a minimum of ten persons and signatures (c)the names in the constituency where the nomination and each who are registered voters person seeks nomin^on as a candidate supporting the of the persons so signing shall state in the nomination paper his or her village,

occupation and personal voter registration number" According to this provisions, it was a legal requirement for a nomination paper to have a minimum of ten persons from the constituency of the candidate whose nomination they are supporting. They had to be registered voters. Each person had to sign or append the thumb-print stating his village, occupation and personal voter registration number. Exhibit P.4 contained names but not signatures. Some were crossed out and others written on top or below the original names. The personal voter registration numbers were left intact. The theory which was advanced by counsel for the second and third respondent was this:that some people who had signed were from other constituency and not Bunya East and when this was discovered before the close of the nomination the first respondent was asked to bring people from his constituency. If this theory is correct, then the only prudent thing to do was to fill in a fresh nomination paper. this would have been in line with the provisions of section 41(3) which says:-

"A nomination paper which a returning officer has refused to accept for filing may be replaced by another nomination paper or may be corrected, except that a new or corrected nomination paper shall be filed with the returning officer not later than the time for the closure of nomination specified under section 39 of this statute."

However section $41(2)$ of the statute provides that a returning officer shall not refuse to accept a nomination paper

$(c)$ on account of any other imperfection in the nomination paper if the returning officer is satisfied that there has been substantial compliance with this statute."

which do not invalidate a nomination paper and failure ^t Section 41 sets factors from the constituency of a candidate ⁱ sign the nomination paper byJen people not one of them.

"Any other imperfection" referred to in the above section must be of a minoi character in my view. I think, that this is a case in which the provisions of section 42 of the statute should be invoked and applied. It says:-

"A person shall not be regarded as duly nominated for a constituency and the nomination paper of any person shall be regarded as void if- (a) if the nomination paper was not signed and .counter-signed in accordance with subsection (1) of section 40"

Failure to have a nomination paper of a candidate signed and counter-signed in The first respondent's nomination paper was not signed by ^a minimum number of ten people as the law requires and this failure cannot be treated as "any other imperfections. It went to the root of the nomination. It is therefore my finding that the petitioner has proved to the satisfaction of the court that the second and third respondents did not conduct the elections regularly. ^a manner set out would render the nomination of such a candidate void in ^m y view.

The third issue is whether the first respondent committed an election offence or malpractices. The allegations made under this head, include the use of a grader, dishing out fish, soap etc. preventing voters to vote and unauthorised people to vote. The election of a candidate as a member of Parliament can only be set aside if it is-proved to the satisfaction of the court that the alleged illegal practice or any other offence under the statute was committed by a candidate personally or with his approval, knowledge or consent. The alleged offenses and substantial manner. malpractices must have affected the outcome of the election in a

In the instant case although the petitioner made allegations in his affidavit, about malpractices and he even made reports to the third respondent (exhibit P.1 and 2), there was not enough evidence to satisfactorily prove them and secondly there was also no evidence that the alleged malpractices affected the outcome of the election in a substantial manner. I so find.

The last issue to determine is whether the first respondent was validly elected a member of Parliament for Bunya East Constituency. The legal position as set out in the case of Morgan and others v Simpson & another (1974)3 All ER $722$ seems to be this:

- If the election is or was so badly conducted that it was not $(i)$ substantially in accordance with the law as to elections the elections is vitiated irrespective of whether the results was affected; - If the election was so conducted that it was substantially in $(ii)$ accordance with the law as to elections, it is not vitiated by a breach of the rules or a mistake at the polls, provided it did not affect the results; - But, even though the election was conducted substantially in $(iii)$ accordance with the law as to elections, nevertheless if there was a breach, of rules or a mistake at the polls and it did affect the results then the election is vitiated.

In the instant case, the findings of this court that the first respondent at the time of his election had not completed a minimum formal education of Advanced level standard or its equivalent and that he was not validly nominated, are sufficient in themselves to have the election held in Bunya East Constituency vitiated. The first respondent was not validly elected a member of Parliament for that constituency. The election is therefore set aside and a new election should be held. The petition is allowed with costs.

$20$


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$24/03/97.$

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# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA

# HOLDEN AT KAMPALA

## ELECTION PETITION NO 22/97

HAJI MULUYA MUSTAPHER PETITIONER

## VERSUS

ALUPAKUSADI WAIBI WAMULONGO

RETURNING OFFICER

ITERIM COMMISSION, RESPONDENT

#### **DECREE**

**THIS PETITION** coming this 24th day of March 1997 for final disposal in the presence of Lwere M. Esq counsel for the petitioner and in the

presence of Sserwanga Sam Esq counsel for the 2nd and 3rd respondent also holding brief for Dan Wandera.

**IT IS DECREED** that the first respondent did not have the requisite qualificationsallowing him to contest elections as a member ofParhament.

**IT IS FURTHER DECREED** that the first. and second respondents did not conduct the elections regulary and the petition be and is hereby allowed with costs.

rec: : *For;* •rMJRT' FEE :v, ?'.^a

day of ilVEN UNDER my hand and seal of the court this ....... 1997.

REGISTRAR

HIGH COURT OF UGANDA

We CONSENT

COUNSEL FOR THE PETITIONER